[EL] PA & WI Supreme Court election orders; more news and commentary

[Rick Hasen]

Breaking: Without Noted Dissent, PA Supreme Court Won’t Grant Stay in Rep. Kelly’s Suit Seeking to Throw Out PA Election Results; Back to SCOTUS?<https://electionlawblog.org/?p=119266>
Posted on December 3, 2020 10:38 am<https://electionlawblog.org/?p=119266> by Rick Hasen<https://electionlawblog.org/?author=3>

See the order here.<https://twitter.com/Elaijuh/status/1334561812440899585> My post from yesterday:

Rep. Kelly Has Apparently Withdrawn His Emergency Request for a SCOTUS Injunction to Reverse Pennsylvania Results, As He Awaits PA Supreme Court Ruling on Stay<https://electionlawblog.org/?p=119247>

From the opposition<http://www.pacourts.us/assets/files/setting-7862/file-10807.pdf?cb=89b73f> to the stay request filed in the PA Supreme Court:

Once again, Petitioners are asking the courts to take expedited action in response to an emergency of Petitioners’ own making. This Court dismissed the Petition for Review because Petitioners had waited far too long—until weeks after the second election carried out under Act 77—to bring it. Petitioners then submitted an Emergency Application for a Writ of Injunction to the U.S. Supreme Court on Tuesday, December 1, only to withdraw it the next day. Now, Petitioners return to this Court to ask it to address issues of federal law that Petitioners have never raised before. If Petitioners believed that this case raised issues of federal law, they had every opportunity to present those issues to the Commonwealth Court and to this Court. Nonetheless, in their voluminous filings, which included a 98-paragraph Complaint and more than 155 pages of briefing, Petitioners never once argued that the U.S. Constitution provides a basis for the relief Petitioners now seek. It is simply too late to invoke the U.S. Constitution now; they have waived their arguments. For this reason, and because the fatal flaws in Petitioners’ original case mean that the Supreme Court of the United States is highly unlikely to grant relief, this Court should deny Petitioners’ Application.

Presumably Rep. Kelly will refile at SCOTUS once this the PA Supreme Court denies a stay.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Breaking and Analysis: Wisconsin Supreme Court, on 4-3 Vote, Rejects Hearing Trump’s Election Challenge and Directs Him Back to Trial Court; 2 Dissenting Justices Suggest Disenfranchising Voters Not a Proper Remedy in Any Case<https://electionlawblog.org/?p=119264>
Posted on December 3, 2020 10:35 am<https://electionlawblog.org/?p=119264> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the Court’s order, a concurring opinion, and two dissenting opinions, at this link.<https://www.democracydocket.com/wp-content/uploads/sites/45/2020/12/2020AP1971-OA.pdf>

The court’s three liberals were joined by conservative Justice Hagedorn in holding that the exclusive remedy for an election contest is to start in the a lower court that can take evidence. (This is not the first time that Justice Hagedorn has sided with liberals in an important voting case).

Chief Justice Roggensack, dissenting along with Justice Ziegler, would have had the Court take the case and have the trial court work to collect evidence for the Court’s benefit. But the Chief Justice added the following key language:

If [the Wisconsin Election Commission] has been giving advice contrary to statute, those acts do not make the advice lawful. WEC must follow the law. We, as the law declaring court, owe it to the public to declare whether WEC’s advice is incorrect. However, doing so does not necessarily lead to striking absentee ballots that were cast by following incorrect WEC advice. The remedy Petitioners seek may be out of reach for a number of reasons.

Justice Rebecca Bradley issued a separate dissent (joined by the other two dissenters) that did not express a view on this question.

It is possible that Trump tries to file a case now in the lower court, and that it could conceivably make its way back to the Wisconsin Supreme Court. But with time being very short before safe harbor day and before the electors meet, there may not be time. And there appears to be a majority that believes there would be serious impediments to overturning the results of an election based upon supposed legal errors committed by the WEC that are not at all the fault of Wisconsin voters. (Among those impediments is laches; a challenge to the means for dealing with absentee ballots should have come well before the election.)
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Posted in absentee ballots<https://electionlawblog.org/?cat=53>


“December 10th Symposium | Digital Technology, Social Media, and the 2020 Presidential Election”<https://electionlawblog.org/?p=119262>
Posted on December 3, 2020 8:32 am<https://electionlawblog.org/?p=119262> by Rick Hasen<https://electionlawblog.org/?author=3>

Looking forward to viewing this event<https://mailchi.mp/stanford/december-10-digital-technology-social-media-and-the-2020-presidential-election?e=1672be3ea1> at the Stanford Cyber Policy Center.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“A Sketchy Trump Appointee At Census Is Involved In Wacky GA Election Lawsuit”<https://electionlawblog.org/?p=119259>
Posted on December 3, 2020 8:21 am<https://electionlawblog.org/?p=119259> by Rick Hasen<https://electionlawblog.org/?author=3>

Tierney Sneed for TPM:<https://talkingpointsmemo.com/news/census-ben-overholt-georgia-lawsuit>

A top Trump-appointed Census Bureau official who was installed this summer under controversial circumstances is also serving as an expert for a Georgia lawsuit seeking to stave off the President’s defeat in the state.

Ben Overholt — who, earlier in the administration, was discussed as a potential hire for President Trump’s bogus voter fraud commission — filed an affidavit in support of the state court lawsuit, which dubiously alleges that there are enough anomalies within the ballot data to justify “decertifying” Georgia’s results.

The lawsuit, filed on Monday, echoes several unsubstantiated claims that President Trump and his allies have made about supposed discrepancies in the election.

Overholt, the Bureau’s deputy director for data, “conducted this work on his personal time and in his capacity as a private citizen,” the Census Bureau said in a statement to TPM.

“Dr. Overholt cleared his participation with career ethics officials at the Department of Commerce Office of General Counsel. Dr. Overholt did not use Census Bureau or Department of Commerce resources to perform his work,” the Bureau said.

Nevertheless, Overholt’s involvement in the increasingly bonkers legal campaign to try to muck up the election results will add to the scrutiny that has already arisen around his and other recent appointments to the Census Bureau. The Census Bureau, under earlier administrations, has strived to insulate itself from political influences. The Trump administration’s move to create new top roles<https://apnews.com/article/us-news-census-2020-86a324116f6ccb242204273b55ea62bb> at the Bureau and then fill<https://www.npr.org/2020/09/30/916526935/census-bureau-gets-4th-trump-appointee-in-3-months-as-count-nears-end> them with officials with partisan entanglements has raised concerns<https://www.politico.com/news/2020/06/30/census-bureau-trump-political-345043> about the pressure being placed the Bureau.

Overholt’s affidavit — which identifies him as a seven-year civil servant, but doesn’t mention his current gig at the Census Bureau — focuses on an already-debunked allegation about Georgia’s mail ballot rejection rates.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Florida attorney under investigation for registering to vote in Georgia, encouraging others to do the same”<https://electionlawblog.org/?p=119257>
Posted on December 3, 2020 7:37 am<https://electionlawblog.org/?p=119257> by Rick Hasen<https://electionlawblog.org/?author=3>

WSB-TV<https://www.wsbtv.com/news/politics/florida-attorney-under-investigation-registering-vote-georgia-encouraging-others-do-same/L6LTC2AHBFDMXPOTZKVMO5ESJQ/> (Atlanta):

A Florida attorney is at the center of a new state investigation after elections officials say he recently attempted to register to vote in Georgia and instructed other Florida Republicans on how to do it .

Bill Price is seen in a now-deleted Facebook Live video, speaking to the Bay County GOP members in Florida on Nov. 7th. It was about half an hour after the election was called for the Joe Biden-Kamala Harris ticket.

Channel 2 investigative reporter Nicole Carr recorded the nearly hour-long video Tuesday afternoon, shortly before it was deleted….

“We absolutely have to hold the Senate and we have to start fighting back, and we have to do whatever it takes,” Price said in the video. “And if that means changing your address for the next two months, so be it. I’m doing that. I’m moving to Georgia and I’m gonna fight and I want you all to fight with me.”

Price told the group he’s moving to his brother’s address in Hiram, Georgia in order to register to vote in the January runoff. He repeats and spells and his brother’s name and address, as members of the group jot it down. They can be heard mumbling the address in the background while some write.

“We can truly register at that address?” one woman asks.

“Sure,” Price answers, adding they have to plan to show a move, suggesting they have mail sent there.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


On Dems Choosing To Contest 6-Vote-Margin Iowa U.S. House Race in the House of Representatives Rather Than in Iowa Courts<https://electionlawblog.org/?p=119255>
Posted on December 3, 2020 7:12 am<https://electionlawblog.org/?p=119255> by Rick Hasen<https://electionlawblog.org/?author=3>

This<https://twitter.com/rickhasen/status/1334515176490606594?s=20> is something to watch:
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Posted in legislation and legislatures<https://electionlawblog.org/?cat=27>, recounts<https://electionlawblog.org/?cat=50>


“Trump’s grievances feed menacing undertow after the election”<https://electionlawblog.org/?p=119253>
Posted on December 3, 2020 7:02 am<https://electionlawblog.org/?p=119253> by Rick Hasen<https://electionlawblog.org/?author=3>

AP<https://apnews.com/article/donald-trump-georgia-state-elections-media-elections-6e30f557f7a015cc9fda9549d2778670>:

The last throes of Donald Trump’s presidency have turned ugly — even dangerous.

Death threats are on the rise. Local and state election officials are being hounded into hiding. A Trump campaign lawyer is declaring publicly that a federal official who defended the integrity of the election should be “drawn and quartered” or simply shot.

Neutral public servants, Democrats and a growing number of Republicans who won’t do what Trump wants are being caught in a menacing postelection undertow stirred by Trump’s grievances about the election he lost.<https://apnews.com/article/joe-biden-donald-trump-media-social-media-elections-71d5469ac0bbccbfe601528a2517b239>

“Death threats, physical threats, intimidation — it’s too much, it’s not right,” said Gabriel Sterling, a Republican elections official in Georgia who implored Trump to “stop inspiring people to commit potential acts of violence.” Trump in response only pressed his groundless case that he lost unfairly, neither discouraging trouble nor explicitly calling for it.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Pro-Trump legal crusade peppered with bizarre blunders”<https://electionlawblog.org/?p=119251>
Posted on December 3, 2020 6:52 am<https://electionlawblog.org/?p=119251> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/news/2020/12/03/sidney-powell-trump-election-lawsuit-442472>

Sidney Powell released the Kraken. And it turns out the mythological sea beast can’t spell, is terrible at geography and keeps mislabeling plaintiffs in court.

A congressional candidate Powell claimed to represent in one lawsuit said that, in fact, he had nothing to do with Powell or her quixotic effort, which she dubbed “the Kraken,” arguing the election was stolen from President Donald Trump. An expert witness cited in another suit named a nonexistent county in Michigan. A Wisconsin lawsuit sought data on alleged irregularities at a voting center in Detroit, which is in Michigan. And a filing in federal district court signed by Powell misspelled “district” twice in the first few lines.

The sloppy mistakes aren’t just a sideshow, despite Powell’s quip on Twitter<https://twitter.com/SidneyPowell1/status/1331858272446533638> when a POLITICO reporter took note of the mangled words: “No extra charge for typos.” Judges also have been flummoxed by the procedural moves and errors committed by Powell, who was booted from Trump’s legal team in November but still is crusading to overturn the election results.

“While the caption of the motion includes the word ‘emergency’ and the attached proposed order seeks an ‘expedited’ injunction, neither the motion nor the proposed order indicate whether the plaintiffs are asking the court to act more quickly or why,” Pamela Pepper, chief judge of the U.S. District Court for the Eastern District of Wisconsin, wrote in an order issued on Wednesday<https://www.courtlistener.com/recap/gov.uscourts.wied.92717/gov.uscourts.wied.92717.7.0_1.pdf>. “As indicated, the motion does not request a hearing. It does not propose a briefing schedule.”

Yet despite the deficiencies of her legal efforts, Powell’s mythology has gained traction with a slice of the MAGA orbit, from well-known Trump allies like former national security adviser Michael Flynn, a Powell client who last week won a presidential pardon, to hundreds of attendees at a Wednesday rally Powell and fellow Trump-supporting lawyer Lin Wood held in Georgia. They solicited donations and urged Republicans to withhold their votes from the GOP senators engaged in January runoffs in the state, saying they have been insufficiently supportive of Trump, whom both senators back.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Gift or Contract? Eshelman v. True the Vote”<https://electionlawblog.org/?p=119249>
Posted on December 3, 2020 6:48 am<https://electionlawblog.org/?p=119249> by Rick Hasen<https://electionlawblog.org/?author=3>

Jeremy Telman<https://lawprofessors.typepad.com/contractsprof_blog/2020/12/gift-or-contract-eshelman-v-true-the-vote.html> at Contracts Law Blog.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>



--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>




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